Whether the prosecutor’s conduct violated the defendant’s Fifth & Sixth Amendment rights when she allegedly participated in his transfer from federal to state custody; Rochin v. California; United States v. Russell; Whether the federal prosecutor’s involvement in the transfer was “outrageous” and “conscience shocking”; Breithaupt v. Abram; Whitley v. Albers; The suppression of evidence obtained through the transfer; Massiah v. United States; Michigan v. Harvey; “Actual prejudice”; United States v. Morrison; Sufficient evidence of the “interstate commerce” element of the charged child pornography crimes; United States v. Carson; United States v. Torres-Ramos; United States v. Grzybowicz (11th Cir.); United States v. Mellies (Unpub. 6th Cir.); United States v. MacEwan (3rd Cir.); United States v. Runyan (5th Cir.); Admission of electronic evidence; Crawford v. Washington; Michigan v. Bryant; Whether a “fatal variance” in the distribution-of-child-pornography charge violated his due process rights; United States v. Bearden; United States v. Budd; United States v. Prince; United States v. Hynes; Assistant United States Attorney (AUSA); Cincinnati Police Detective (CPD)

The defendant was not entitled to have his indictment on child-pornography charges dismissed based on alleged “prosecutorial misconduct.” Defendant-Napier argued that the AUSA participated in his improper transfer out of federal into state custody. He claimed that this “misconduct also include[d] the results of that transfer: the CPD’s alleged violation of Napier’s right to counsel under the Sixth Amendment and under Miranda when his repeated calls for counsel went unheeded.” The court affirmed the district court’s order denying Napier’s request to dismiss. It agreed with the district court’s conclusion that “the AUSA had initiated the transfer[,]” but that Napier failed to show “that AUSA’s conduct rises to the ‘outrageous,’ ‘conscience shocking’ level necessary to warrant the extraordinary remedy of dismissing the charges against him with prejudice . . . .” The district court properly found that although it “was ‘certainly foreseeable than an interrogation would take place’ while Napier was in Hamilton County, the AUSA could not be held accountable for alleged constitutional violations committed by state agents and there was no record evidence that she personally participated in these alleged violations.” Also, the district court “took appropriate steps to sanction the ‘poor judgment on the part of the AUSA[]’” by suppressing the evidence obtained during the CPD interview for both substantive and impeachment purposes. “[M]ost importantly, Napier has not demonstrated any actual prejudice as a result of the AUSA’s conduct.” The court noted that it “has never sanctioned the remedy requested by Napier for any pretrial conduct by a federal prosecutor, and this case will not be the first.” The court also held that the government sufficiently established the interstate commerce element of the crimes charged—“Napier’s use of the Internet, coupled with the varying timestamps indicated on his emails, is sufficient to satisfy the federal jurisdictional nexus.” The district court properly admitted the challenged electronic evidence, and the court rejected his argument that his conviction on the distribution-of-child-pornography charge was “afflicted by a ‘fatal’ variance” and violated his due process rights. Affirmed.